Subdivision and consolidation of sections
By Carryn Melissa Durham
Initially the developer determines how the sectional plan will divide the buildings into sections and common property. It may be that in an owner is not satisfied with this, and may decide on consolidating (combining) two or more sections into one section or subdividing one large section into two or more sections. The Act provides procedures for owners to re-arrange the legal configuration of the sections they own.
In this article I will discuss the type of consent required to authorise the subdivision and consolidation of sections within sectional title schemes. I will also discuss the procedure for the registration of the subdivision and consolidation of sections.
In terms of section 21 of the Sectional Titles Act 95 of 1986 (“the Act”) an owner of a section who proposes to either subdivide his or her section or to consolidate two or more sections registered in his or her name, must obtain the consent from the trustees of the body corporate. The trustees must consider an owner’s application for consent to subdivide or consolidate sections and they may not unreasonably withhold such consent. An owner is not entitled to submit a draft sectional plan of subdivision or consolidation of his or her units to the Surveyor-General until the trustees have given the required consent.
The owner must then cause the land surveyor or architect concerned to submit the draft sectional plan of subdivision or consolidation, as the case may be, to the Surveyor-General for approval. The draft sectional plan so submitted must be accompanied by the documents referred to in section 7(2) of the Act (that have been suitably adjusted); and, in the case of a subdivision, a schedule specifying the apportionment of the participation quota of the section between the new sections created; and, in the case of a consolidation, a schedule specifying the participation quota of the new section created, being the aggregate of the quotas of the sections that are to be consolidated. The manner of submission of the draft sectional plan and of all other documents to the Surveyor-General must be as prescribed. The Surveyor-General must not approve a draft sectional plan, unless the plan has been prepared in accordance with the Act and all applicable documents have been submitted.
In terms of sections 22 and 23 of the Act an owner may, after approval of a sectional plan of subdivision or consolidation (as the case may be), apply to the Registrar of Deeds to register the sectional plan of subdivision/consolidation. This application must be accompanied by:
- two copies of the sectional plan of subdivision/consolidation;
- the sectional title deed in respect of the section to be subdivided/consolidated;
- any sectional mortgage bond to which the section may be subject, together with the consent of the mortgagee to the cancellation of the bond or to the release of the section from the bond or to the subdivision and substitution of the new sections in lieu of such section as security under the bond in the case of subdivision, or any sectional mortgage bond registered against the sections, together with the consent of the mortgagee to the registration of the sectional plan of consolidation in the case of consolidation;
- certificates of registered sectional title in the prescribed form for each of the new sections and their undivided shares in the common property created by the subdivision, made out in favour of the owner or, in the case of a partition, in favour of the persons entitled thereto in terms of the partition agreement and the partition agreement (if any), if the section is owned by more than one owner;
- a certificate of registered sectional title in respect of the new section reflected on the sectional plan of consolidation, and its undivided share in the common property, made out in favour of the owner of the sections to be consolidated; and
- such other documents and particulars as may be prescribed.
After the abovementioned requirements (and any other relevant law) have been complied with, the Registrar must register the sectional plan of subdivision/consolidation; furnish a copy of the sectional plan of subdivision/consolidation to the local authority concerned and notify the Surveyor-General of the registration of the sectional plan of subdivision/consolidation. The Surveyor-General must then amend the original sectional plan and the deeds office copy of the sectional plan to reflect the subdivision/consolidation.
Upon registration of the sectional plan of subdivision, the portions in question are deemed to be separated from one another and each is deemed to be a separate section. Upon registration of the sectional plan of consolidation, the sections in question are deemed to be consolidated into a single section as depicted on the sectional plan of consolidation. The provisions of section 40(5) of the Deeds Registries Act applies with reference to any mortgage bond registered over one or more component sections of the section represented on the sectional plan of consolidation. The Registrar must also, with regard to the sectional title deed relating to the section, issue the certificates of registered sectional title, and make such endorsements on the superseded and newly issued certificates of registered sectional title, any sectional mortgage bond, lease or other deed embodying any other real right registered against the section at the time of subdivision/consolidation, and entries in the deeds registry records, as he may deem necessary to give effect to the provisions of these sections. On registration, a sectional plan of subdivision/consolidation is deemed to be incorporated in the sectional plan, and all the provisions relating to sectional plans apply to such plan.
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